- 13 -
101 T.C. 374, 386 (1993), affd. without published opinion 40 F.3d
385 (5th Cir. 1994); Pollack v. Commissioner, 47 T.C. 92, 108
(1966), affd. 392 F.2d 409 (5th Cir. 1968); Wichita Terminal
Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162
F.2d 513 (10th Cir. 1947). We are thus left only with
petitioner’s testimony that some portion of the additional
payment was in settlement of claims for section 104(a)(2)
damages. Petitioner’s testimony that he made specific claims to
Boehringer on grounds other than his ADEA claim and that those
claims were settled pursuant to the final agreement was after-
the-fact, self-serving, and uncorroborated. We are unwilling to,
and need not, accept that testimony at face value. See, e.g.,
Day v. Commissioner, 975 F.2d 534, 538 (8th Cir. 1992), affg. in
part, revg. in part T.C. Memo. 1991-140; Liddy v. Commissioner,
808 F.2d 312, 315 (4th Cir. 1986), affg. T.C. Memo. 1985-107.
Petitioner has failed to prove that Boehringer intended any of
the additional payment to be section 104(a)(2) damages. More
generally, petitioner has failed to prove that any of the
additional payment constitutes section 104(a)(2) damages.
In conclusion, petitioner has failed to prove that any of
the payment constitutes section 104(a)(2) damages. Respondent’s
determination of a deficiency in tax is sustained.
Decision will be entered
for respondent.
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Last modified: May 25, 2011